Chair's Column

As the year in office draws to a close, final reflections both on how difficult these twelve months have been for the Bar, and on how much there is for all in the profession to be proud of and to fight for.

Contributor
Maura McGowan QC, Chairman of the Bar

2013 has been, as everyone keeps telling me, a very difficult year. We have seen the implementation of LASPO, which has denied legal aid to very many vulnerable people seeking to enforce or defend their rights in family, housing, employment and immigration cases. It has seen two consultations on legal aid funding for criminal work which demonstrate a stubborn commitment by the Ministry of Justice to cut fees, irrespective of the damage done to a legal profession which is the envy of the world, and in total defiance of the fact that fees in some areas of crime have already been cut by 40%. These cuts are planned against a background in which the legal aid spend in crime was £1.1 billion in 2011 and has since fallen to £0.9 billion in 2012. Of course, nobody can depend on the fact that the rate of crime will continue to fall but a very substantial part of that saving has been achieved by the previous cuts in fees. That is being ignored. We continue to argue the case as vigorously as we can.

Addressing lazy journalism; recognising what really motivates members of the Bar; looking at the pro bono work carried out on all fronts by so many; and the need for wider understanding of this contribution by all, especially the Government

Contributor
Maura McGowan QC, Chairman of the Bar

On a cold, wet, miserable winter’s evening at the beginning of the year I set off to a seminar on legal rights for disabled people in a slightly musty community centre opposite Pentonville Prison. I was slightly depressed by yet another tabloid rant about “fat cat” lawyers living off the “gravy train” that is the legal aid budget. I arrived to find that the event was sponsored by one set of chambers and was being addressed by a barrister from another set. It was a perfect example of the total breakdown between the fact and the lazy journalism that provides the fiction.

A reflection on the extraordinary achievements of the outgoing Lord Chief Justice, Lord Judge

Contributor
Maura McGowan QC, Chairman of the Bar

A standing ovation in the court of the Lord Chief Justice is a rare phenomenon. But it happened spontaneously, and with genuine warmth, at the valedictory ceremony for the outgoing incumbent, Lord Judge. The court was packed and places had been available by invitation only. If the proposed broadcasting of the proceedings in the Court of Appeal had been in place, it would have been a marvellous occasion to have captured for posterity.

Defending the profession; resisting cuts that will destroy access to justice for all; understanding the value of our justice system in a civilised society; and amidst all the proposed changes, the need to establish a Royal Commission to carry out a full, independent review

Contributor
Maura McGowan QC, Chairman of the Bar

Barristers are such an easy target. Trite sneers are instantly available to the disappointed litigant, failed pupil or populist politician. We are “fat cats” sitting in “Georgian terraces” bleating about the “racket” coming to an end. The natural response of the practitioner to these comments is anger and frustration.

Government legal aid proposals; the shrinking effect on the Bar and on pupillages available; the need for a solution to the pupillage crisis; and one possible answer

Contributor
Maura McGowan QC, Chairman of the Bar

The autumn of 2013 will see Government proposals which may bring about the greatest changes to the provision of legally aided representation in criminal cases since the introduction of public funding for those accused of crime. The last two years have seen the most fundamental reduction of legal aid provision in family and general civil work since the introduction of legal aid in 1948.

A look at the government’s new consultation on legal aid reform and an urgent call to all sections of the Bar, irrespective of discipline, to respond

Contributor
Maura McGowan QC, Chairman of the Bar

I would imagine that being hit and knocked out by a speeding car means that when you come around you feel a mixture of relief at not being dead and a deep concern about whether your injuries might yet turn out to be fatal. That’s the dawning feeling for most of the criminal Bar following publication of the Ministry of Justice’s (MoJ’s) consultation paper, Transforming legal aid: delivering a more credible and efficient system.

The importance of monitoring and measuring the effects of LASPO; ensuring recognition of pro bono work by both the Bar and those outside the profession; and the Bar’s fight to preserve the Rule of Law.

Contributor
Maura McGowan QC, Chairman of the Bar

By the time this is published the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act relating to restrictions on the scope of legal aid will have come into force*.

The encouraging and disappointing aspects of QASA and the need for ongoing input into designing the final scheme; the importance of the appointment of the new Lord Chief Justice and the fight to preserve the Criminal Bar; and January’s FSA approval of BARCO

Contributor
Maura McGowan QC, Chairman of the Bar

QASA. The BSB issued an announcement jointly with the other regulators just before Christmas on the form which the scheme will take when the two year trial period begins.

Latest Cases

Disclosure and inspection of documents – Public interest immunity. The Competition and Markets Authority (the CMA) was granted various warrants under s 28 of the Competition Act 1998, concerning an investigation into suspected anti-competitive behaviours in relation to a number of pharmaceutical drugs. The defendant (Concordia) applied to have the warrant granted in respect of it discharged to the extent that it applied to certain medicines. Prior to that application being heard, the Chancery Division considered whether Concordia could have sight of certain confidential material submitted in support of the CMA's application or whether non-disclosure could be justified, as the CMA submitted, on the ground of public interest immunity.

Contract – Damages for breach. The appellant's appeal in respect of his claim for breach of contract against the respondent IVF clinic was dismissed. The clinic had implanted an embryo containing the appellant's gametes into his former partner (R), from whom the appellant had, by then, separated, without the appellant's consent (his signature having been forged). R had later given birth to a child. The Court of Appeal, Civil Division, ruled, among other things, that the legal policy which prevented recoverability of the cost of the upbringing of a healthy child tortious claims applied to the appellant's claim for breach of contract.

Patent – Infringement. The Patents Court considered the validity of three patents relating to pharmaceutical compositions for inhalation. The defendant company (Ventura) alleged that the claimant companies (together, GSK) had infringed the patents by the manufacture and sale of dry powder inhalers containing ingredients used to treat asthma and chronic obstructive pulmonary disease. The court held that GSK had not established that any of the patents were obvious over any of the cited prior art. Further, Vectura had not proved that GSK's process and products had infringed the patents. Furthermore, the patents were all invalid on the grounds of insufficiency. GSK's process, and hence the products obtained as a direct result of that process, were obvious over the prior art.

Contract – Construction. The declaration sought by the claimant employer, that, on the proper construction of practical completion within an amended JCT 2011 design and build contract, it was possible to achieve completion of one section of the works prior to the completion of the whole of the works, was granted. The Technology and Construction Court held that the interpretation of practical completion contended for on behalf of the defendant contractor, and accepted by the adjudicator, had not accorded with the ordinary meaning of the words used.

Family proceedings – Orders in family proceedings. The total amount which the husband had to pay was £4.05m following the wife's application for financial provision. The Family Court based that on an initial lump sum in respect of housing and capitalised maintenance of £3.65m, with an additional £400,000, being a little bit less than half of the total sum due on her litigation loan.